N.H. seeks ‘bail out’ from federal voting law

DOVER — New Hampshire could soon be released from a requirement to clear new voting laws with the federal government before they can go into effect.

Following years of preparation, the New Hampshire attorney general filed a lawsuit in U.S. District Court in Washington, D.C., on Nov. 15. It asks a panel of judges to release all portions of the state from Section 5 of the Voting Rights Act of 1965.

A key piece of civil rights legislation, the Voting Rights Act has been credited with improving voting practices and boosting minority participation in wide swaths of the country. It guarantees that voters aren’t disenfranchised on account of race or color.

It also contains several special provisions that impose more stringent federal oversight in certain areas of the country, known as “covered jurisdictions.” Under the terms of Section 5, no voting changes are legally enforceable in these jurisdictions until approved either by a three-judge court in the District of Columbia or by the U.S. Attorney General.

Ten New Hampshire towns, including Newington, have long been covered by Section 5. That means changes to election laws that affect any of these 10 towns — ranging from a change in polling hours to a new statewide law — must be reviewed by federal officials.

The state’s new voter identification and voter registration laws are examples of legislation that required pre-approval from the U.S. Department of Justice before they were implemented earlier this year.

Section 5 also authorizes the U.S. Attorney General to send federal election examiners to covered jurisdictions to monitor voting activity and ensure eligible voters are free to register for elections.

U.S. DOJ also reviews changes to New Hampshire’s State Senate and House districts to ensure they don’t have the effect of denying or abridging the right to vote on account of race or color, or membership in a language minority group.

DOJ analyzes the impact proposed laws would have for voting on language and race minorities in the 10 New Hampshire communities, Mavrogeorge said.

“When you make preclearance submissions, they’re pretty standard submissions, but they can be rather involved,” Assistant Attorney General Matthew Mavrogeorge said last week.

The Voting Rights Act also contains a so-called “bail out” mechanism, which allows jurisdictions with a track record of following election laws to erase their obligations under Section 5.

More than 100 jurisdictions have been granted bail outs over the last three decades. However, if its lawsuit against the U.S. Department of Justice is successful, New Hampshire would be the first state to completely free all parts of its territory from Section 5 obligations since the early 1980s, when Maine, Colorado and other states accomplished the same feat, according to Loyola Law School professor Justin Levitt, an election law specialist.

“It’s a big deal for the state,” Mavrogeorge said last week. “It really is. It’s been a long time coming, and there have been a lot of people involved in it.”

History of Voting Rights Act

The Voting Rights Act was adopted by Congress at a time when African Americans faced significant voting challenges in many southern states. Congress granted federal election overseers new authority over some matters that were previously delegated to the states in an effort to safeguard civil liberties.

To establish which districts would be covered by Section 5, Congress developed a two-part formula. The formula was an expedient way for Congress to avoid the thorny issue of naming states where minority voters were being disenfranchised, Levitt said, essentially branding them as racists.

Low voter turnout proved to be a measure that correlated strongly with race-based discrimination.

“Whether it’s because of racial discrimination or not, that’s not healthy,”Levitt explained.

The first element of the formula was whether the state or political subdivision used a “test or device” to restrict voting, such as a literacy test.

The second element centered on voter turnout. Voting districts became covered under Section 5 if, during elections in the 1960s, less than 50 percent of residents were registered to vote, or less than half cast ballots.

It was an election in 1968 that led to 10 New Hampshire communities qualifying for increased federal oversight. At that time, there was a statewide literacy test in use in New Hampshire, and voter turnout in the 10 communities — Rindge, Millsfield, Pinkhams Grant, Stewartstown, Stratford, Benton, Antrim, Boscawen, Newington and Unity — was below the threshold set by the Voting Rights Act.

Within the last three years, critics have challenged Section 5 in court, arguing it now imposes an arbitrary burden on states that have improved voting practices.

Defenders of Section 5 counter that even this year, legislation was blocked around the country because it failed to pass muster with the Department of Justice. In Texas, for example, courts found substantial evidence of inherent racial discrimination against Latinos in two laws that were passed this year, Levitt said.

“It is doing work,” he said. “There is no question. It has stopped some intentional discrimination. Texas is the primary red flag.”

N.H. looks toward bail out

Although many territories have managed to get bailed out of Section 5, nine states are still covered in whole: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

Counties in California, Florida, New York, North Carolina and South Dakota also fall under Section 5 jurisdiction, as well as the 10 New Hampshire towns and portions of Michigan.

While some portions of the Voting Rights Act are permanent, Section 5 is temporary, and must be reauthorized by Congress on an ongoing basis. It was last reauthorized in 2006, when a Republican House overwhelmingly voted to the renew the act, including the basic scope of jurisdictions that are covered by Section 5. It’s set to remain in effect through 2031.

It wasn’t until the early 2000s when the New Hampshire attorney general started filing for preclearance from the Department of Justice, as required by federal law.

After a lengthy process of getting up to date on existing election laws, the state was in a position for the first time this year to file suit on behalf of the 10 towns to be relieved of Section 5 obligations.

To get out of Section 5, covered jurisdictions must show they’ve abided by the Voting Rights Act for at least the last 10 years, and also generally made efforts to improve the political power of minorities in the jurisdiction.

“Generally speaking from what I understand, New Hampshire has in fact improved the election laws that structure political power for racial and language minorities within the state, and in particular these towns have done so,” Levitt said.

U.S. Supreme Court will also consider issue

A case pending in the U.S. Supreme Court could also have wide-ranging effects on the voting rights law.

The court announced earlier this month that it will hear arguments in Shelby County v. Holder, a case brought by an Alabama jurisdiction. The state is challenging whether Congress was within its authority to assign the covered jurisdictions when it reauthorized the Voting Rights Act six years ago.

Supreme Court watchers have taken an interest in the case because several justices have already indicated their displeasure with Section 5 in the past.

In 2009, the Supreme Court heard a case called Northwest Austin Municipal Utility District Number One v. Holder, which touched on the same issues. The court’s ruling in that case didn’t address the central question of Section 5’s constitutionality; instead, the court gave Congress an opportunity to tweak the Voting Rights Act without the mandate of a legal ruling, according to a New York Times report.

Levitt believes the outcome of New Hampshire’s bail out lawsuit could bear significance for the Supreme Court case. If the state is successful, New Hampshire could be presented by the federal government as further evidence that the law passed by Congress is effective, since it contains an appropriate mechanism for relief.

“I think there’s no question that several justices are very uneasy with the structure of Section 5, but that’s not the question,” Levitt said. “The question is whether Congress is within the zone of its authority in putting forth Section 5.”